August 2013

August 29, 2013

Brinkmanship: As the United States threatens military action in Syria, the Obama administration is pressed for more definitive evidence of a chemical attack. The New York Timesreports that the Obama administration will make public definitive evidence of a chemical attack. Meanwhile, Reuters reports that Syrian President Bashar al-Assad said that the country would defend itself against any aggression.

Rim Fire: After a week and a half of battling a wildfire near Yosemite National Park, firefighters are starting to get the blaze under control. The Los Angeles Timesreports the fire is the sixth largest in California history.

MLK: Thousands gathered on the national mall yesterday to celebrate the 50th anniversary of the march on Washington. The Washington Post has full coverage of President Obama's speech and the event.

August 28, 2013

The Obama administrative gave the filmmakers behind Zero Dark Thirty inside access to interview key players in the raid that would end in the death of Osama bin Laden. Does that render the names of those officers public record?

According to a federal trial judge, presiding over a Freedom of Information Act dispute in Washington, the answer is no. U.S. District Judge Rudolph Contreras ruled for the U.S. Justice Department today, saying the full name of a U.S. Navy SEAL and the first names of four CIA officers can remain shielded from the public.

"Although it touches upon matters of considerable public concern, this case presents an exceedingly narrow question: whether a FOIA requester that knows information has been disclosed to a private party is necessarily entitled to that same disclosure," Contreras wrote. The opinion is here.

The plaintiff, Judicial Watch, which filed suit in January 2012, did receive a batch of records from the CIA and the Defense Department concerning government communication with Zero Dark Thirty director Kathryn Bigelow and writer Mark Boal. Judicial Watch lawyers challenged the government's redaction of the names of the SEAL team member and the CIA officers.

Help wanted: Industry leaders sought to build confidence in U.S. privacy
protections. This was the plea made by departing U.S. Commerce
Department General Counsel Cameron Kerry to the U.S. private sector
Wednesday.

Delivering his final public remarks as Commerce GC
at the German Marshall Fund of the United States in Washington, D.C.,
Kerry said the businesses community has a key role to play in
demonstrating to the world that the United States is committed to
consumer privacy. Kerry, who leaves office next week, said companies
that promote privacy protection will help the United States after former
National Security Agency contractor Edward Snowden leaked details about
the agency's far-reaching access into user information held by
technology firms.

"This is ultimately about trust," Kerry said.
"The government can try to create a trusted framework. But it's up to
companies to build that trust."

A Minnesota whistleblower whose case was at the center of a protracted dispute between congressional Republicans and the U.S. Justice Department lost his dispute today in a federal appeals court.

The U.S. Court of Appeals for the Eighth Circuit upheld a district court decision throwing out Fredrick Newell's whistleblower action that alleged St. Paul falsely certified compliance with government-assisted housing requirements. Newell failed to establish he had direct and independent knowledge of the information underlying his fraud allegations, the three-judge panel ruled.

The Eighth Circuit panel also rejected Newell's "novel contention" that he should be able to pursue discovery about how the Justice Department handled his case. The federal government declined to intervene on behalf of Newell, leaving him alone in his legal fight, as part of a "global settlement" with St. Paul.

Earlier this year, Fannie Mae and its former auditor, KPMG LLP, reached a $153 million settlement in a securities fraud class action. As the agreement moves towards final court approval, lawyers for the class members are seeking more than $44 million in fees and expenses.

The plaintiffs’ lawyers are seeking 22 percent of the settlement fund—about $29.1 million, after certain expenses and costs are subtracted, the maximum the lawyers said they'd request in the settlement notice sent to class members. According to a
motion for fees filed August 16 in U.S. District Court for the District of Columbia, the plaintiffs' lawyers are also seeking about $15.2 million for expenses.

The quest for attorney fees has been smooth so far. No class members have filed an objection to the settlement, which included notice that their lawyers would be seeking a maximum of 22 percent of the settlement in fees and up to $17 million in expenses. Class members have until September 30 to file objections. As part of the agreement, the defendants said they wouldn't take a position on fees.

Akin Gump
Strauss Hauer & Feld wants to help the Washington metropolitan area make
its dash for Olympic gold. The firm is serving as legal counsel to D.C. 2024,
the nonprofit organization that plans to make a pitch to bring the 2024 Summer
Olympic Games to the nation’s capital.

Board member
Anthony Pierce, the partner in charge of Akin's Washington office, said the
firm is offering legal counsel on a pro bono basis. No legal issues have yet to
come up yet, he said.

Among the
matters Pierce expects attorneys will confront: corporate governance, IP
licensing, labor and employment, real estate, trade and regulatory. Pierce said
Akin is currently the only law firm involved in assisting the D.C. 2024
nonprofit.

"The
organization needs a law firm like ours that is national and local in its
approach and knowledge of these legal issues," Pierce said.

Take Cover: Where in international law is the legal "cover" for international retribution with military force against Syria? The argument for "anticipatory" self-defense - to take out something before it is used against you or your allies - is gaining favor, CNN reports.

Big Bills: The six biggest U.S. banks, led by JPMorgan Chase & Co. and Bank of America Corp., have piled up $103 billion in legal costs since the financial crisis, according to data complied by Bloomberg.

Baker Bumped: Baker & McKenzie has lost its position as the world's top-grossing law firm, despite posting yet another record financial performance in its most recent fiscal year, The Am Law Daily reports. The firm was bumped from the top spot by DLA Piper.

Plaintiff Payday: Merrill Lynch has agreed to pay $160 million to settle a racial bias lawsuit filed on behalf of 700 black brokers. The payout will be the largest sum ever distributed to plaintiffs in a racial discrimination suit against an American employer, The New York Times reports.

August 27, 2013

Check out the Justice Department's Office of Legal Counsel web page and you'll find hundreds of legal opinions from various points in history. Is that all there is? Not at all.

A suit filed Tuesday in Washington federal district court challenges department secrecy when it comes to the public disclosure of OLC opinions.

The complaint, filed by Citizens for Responsibility and Ethics in Washington, asks a federal trial judge to direct the Justice Department to "make all binding legal opinions issued by OLC available for public inspection and copying."

"There exists within OLC and DOJ a body of secret law that, while binding on the executive branch, is not accessible to the public," CREW executive director Melanie Sloan and chief counsel Anne Weismann wrote in the complaint.

The five National Labor Relations Board members confirmed by the U.S.
Senate last month have picked their top legal advisers, the labor and
employment watchdog announced Monday.

Chairman Mark Pearce, whom the Senate confirmed to a second five-year
term in July, went outside of the NLRB for a new chief counsel. But new
board members Kent Hirozawa, Harry Johnson III, Philip Miscimarra, and
Nancy Schiffer all turned to lawyers who have held NLRB chief counsel
posts in the past.

Music copyright lawyers: Don't touch that dial. Nonprofit SoundExchange Inc., which collects and distributes digital performance royalties and distributes them to artists and copyright owners, filed a
lawsuit yesterday accusing Sirius XM Radio Inc. of underpaying.

In the complaint, filed in U.S. District Court for the District of Columbia, SoundExchange claimed Sirius wasn't including certain revenues in a formula designed to calculate how much the satellite radio company should pay in royalties under its license. Sirius, according to SoundExchange, excluded revenues from pre-1972 recordings, certain premium subscription packages and products developed by XM Satellite Radio Holdings Inc. before it merged with Sirius in 2008.

Jenner & Block's Michael DeSanctis, the firm's former managing partner and a member of the content, media and entertainment practice, is leading SoundExchange's effort to recover damages the nonprofit estimated were worth a minimum of $50 million and possibly more than $100 million. DeSanctis said today that SoundExchange had been a "long and very good client" of the firm since around 2005.